Duff v. A. Teichert & Son, Inc.

SCHOTTKY, J. Plaintiff above named commenced an action against defendant corporation to recover damages for injuries received when the motorcycle on which he was riding [29]skidded, throwing him to the ground. He alleged that his injuries were caused by the dangerous and defective condition of the street and the negligence of defendant. Defendant in its answer denied any negligence and also pleaded contributory negligence on the part of plaintiff. The action was tried by the court without a jury, and judgment was rendered in favor of plaintiff for the sum of $3,895.50.

Defendant has appealed from said judgment and states the questions involved as follows:

“I. Was the Honorable J. 0. Honour qualified under the Constitution of the State of California to act as a judge and render a judgment in this case ?

“II. Was there any substantial evidence to support the finding of fact that the accident and plaintiff’s injury were caused by the negligence of defendant?

“III. Did the evidence establish as a matter of law that the accident was caused by the contributory negligence of defendant ? ’ ’

Since this appeal was filed our Supreme Court, in the case of Pickens v. Johnson, 42 Cal.2d 399 [267 P.2d 801] (in which case Judge Honour was also the trial judge), has decided that a retired judge of the superior court, when properly assigned by the chairman of the Judicial Council, may try a case in the superior court under such assignment. This decision disposes of appellant’s contention that Judge Honour was not qualified to act as a judge in the instant case.

Before discussing appellant’s remaining contentions, which involve the sufficiency of the evidence, we shall give a brief summary of the evidence as shown by the record.

Defendant corporation performed some paving work and installed gutters and curbs on Wright Street in a subdivision known as Vienna Woods, in Sacramento County, during 1950, under contract with the county, completing the work in June or July, except that it went back twice thereafter to clean up loose rocks, gravel, and sand. This latter procedure was by hand-sweeping the loose materials into the gutters into piles, and then later shoveling them into trucks for removal.

On the 30th of August, 1950, plaintiff operated his motorcycle on said Wright Street to his residence at number 2641, and turned to proceed into his driveway. As the cycle passed over the gutter, it slipped in an accumulation of rock and gravel therein and fell upon plaintiff’s right leg, fracturing same.